YOURS: Water law erodes property rights

If compromise is, as German politician Ludwig Erhad said, the art of dividing a cake in such a way that everyone believes he received the biggest piece, South Dakota lawmakers fell short in last summer’s special session.

Neither property owners nor sportsmen were especially pleased with the outcome of the effort to resolve the issue of nonmeandering water.

Now, Gov. Dennis Daugaard wants the Legislature to extend the law passed in a June special session regarding nonmeandered lakes.

The new law favors sportsmen over farmers and landowners, and attempts are being made in Pierre to strengthen even more the position of those who consider such water public domain. Those fighting to regain lost ground for property rights are finding the going much tougher, just as they did in June.

At issue is access to “nonmeandered” water, that is, water that has outgrown its earlier, surveyed boundaries and now covers privately owned land. All water in South Dakota is considered “public,” but the encroachment of expanding lakes and sloughs on private land has raised questions of access and taxation.

It is reasonable to take the position that private land that has become inundated with water should be controlled by the landowner. The right to own property was a driving force in the settlement of this country. Samuel Adams said it as well as any Founding Father:

“Among the natural rights of the colonists are these: First, a right to life; secondly to liberty, and thirdly, to property; together with the right to defend them in the best manner they can.”

Moreover, inundated land that has become non-tillable or suitable for livestock should not be taxed at the same level or arguably not taxed at all.

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The new law says a landowner may mark his property line to keep fishermen and other sportsmen at bay, but if he does, he cannot set his own fee to fish or hunt on the water that covers his land. This provision reflects the muscle of the Game, Fish & Parks and other outdoor groups, which mobilized following the GF&P’s calculated closure of 25 nonmeanderable lakes last spring.

Let’s take a look at that part of the law. If the parcel of land was not covered with water, the landowner could control access to his property by posting the boundaries. He could also charge for hunting on that land. Under the new law, he can post his boundaries, but then is not allowed to charge for fishing or hunting on the water that covers his land.

Landowners do have some recourse on taxation by applying for reduced taxes on inundated land. By some estimates, 100 to 150 farmers and landowners in Day County, where the lawsuit originated, have done just that, contrary to reports that taxation was a minor issue.

Though the governor and many others had hoped that the issue was settled, the deep divide was not spanned by the bridge of compromise attempted in the special session. What has been puzzling from the beginning is the number of lawmakers who will not acknowledge the sanctity of property rights. Without those rights, the economic engine that powers this state and nation would grind to a halt.

Noel Hamiel is a retired journalist and former state legislator who lives in Rapid City.